33 F. 348 -

33 F1d 348

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Case Text

FEDERAL REPORTER. quenta ca.tastrophe may fairly be regarded as the common property of all playwrights. The plaintiffs' contention is founded solely upon the circumstance that in their pla,y the river into which the fall takes place is mimicked by a tank filled with real water, instead of by an apparatus oonstructed of cloth, canvas, or painted pasteboard. Such a mechanical contrivance, however, is not protected by a copyright of the play in which it is introduced. The,decisions which extend the definition of "dramatic composition" so as to include situations and" scenic" effects, do not cover the mere mechanical instrumentalities by which such effects or situations are produced. The plaintiffs upon the argument referred to Daly v. Palmer, 6 Blatchf. 264, assusta.ining their contention. That case does not go to such extent. The practicable railroad tracks, and the counterfeit locomotives which ran upon them, in the two plays analyzed by JUdge BLATCHFORD in Daly v. Palmer, suggested the name "railroad scene" as generally descriptiveofthe portions ofthose plays in which they were introduced. The tracks and locomotives, however, were mere links, in an extended chain of incident, speech, and action, which, together, represented a serieEl of events concededly novel. and which,in the opinion oithe court, constituted a dramatic composition. Because in both plays there was found the same series of events in the same order, represented in a manner to convey the same sensations and impressions to the spectators, it was held that the representa.tions of the latter was a piracy' of a meritorious part of the invention incorporated in the former. Motion for injunction is denied.

STOVERet al. v. LATH!tOP.

(C'Vreuit Court, D. Colorado. l8SS.)

CoPYRIGH'l'-'-CONVERSION OF A:BSTRACT BOOKS.

In an action of trover for the conversion of a set of abstract books, where there was no averment ,of a copyright, or infringement of the same, and the proofs did not show that defendant had s copyright, had there been one, there is nothing presented for the conSIderation of the jury, touching the question of s copyright.

At Law. On motion for a newtrial. Action in trover, for the conversion of a set of.abstract books. dict for defendant, and motion by plaintiffs for a new trial. Browne & Putnam, for plaintiffs. W. B. Mills, for defendant.

Ver-

BREWER, J. In case No. 1,886, on a motion fora new trial, which was argued before my Brother HALLETT and myself last week, the' question which was argued by the defendant's counsel, the verdict having been for defendant, was one of copyright, which arose on the trial, and in respect to which my Brother HALLETT declined to give any instructions, or at least any instructions recognizing any right on the part of plaintiff.

STOVER V. LATRROP.

349

I think it would be very hard to find in the pleadings anything which would justify the bringing up for consideration this matter of the copyright. The complaint is in trover, and alleges that the plaintiff, as surviving partner, was the owner of a set of abstract books, and that he loaned them to the defendant, at that time the recorder of this county, to be used by him and kept up, and thereafter returned upon reasonablt" demand. Demand was made, and refused; and the books were sold by the defendant to a third party, and the value of them is claimed in this complaint. There is no allegation in the complaint that there was any copyright upon the books; the only thing that even squints in that direction is this statement in the matter of description: "Said property consisted of abstract books known as the' Durfee System of Abstracts.'" Now, whether there was any copyright upon that system is not averred, nor is there any allegation of any infringement of a copyright, or any claim for damages for such an infringement. It is a simple action of trover for the conversion of that set of abstract books. Under those circumstances, it seems to us that there was nothing in respect to the copyright, or to any infringement of the copyright, which was proper matter of consideration for the jury. It is true the plaintiff offered in evidence proof of having a copyright on that system of abstract books; but that was, undoubtedly, merely for the purpose of identification and description; or at least, if it did come in without objection, it did not open the door for any inquiry as to an infringement of that copyright. But even if it were fully set forth in the complaint. and was a proper matter of inquiry, there are two very serious difficulties standing in the way of the plaintiff's recovery. First, it is very doubtful whether a copyright can be taken out on a mere system of abstract books,-whether that is not, more properly, the subject-matter of a patent than of a copyright. Be that as it may, the effect of a copyright is not to prevent any reasonable use of the book which is sold. I go to a book-store, and I buy a book which has been copyrighted. I may use that book for reference, study, reading, lending, copying pas· sages from it at my will. I may not duplicate that book, and thus put it upon· the market, for in so doing I would infringe the copyright. But merely taking extracts from it, merely using it, in no manner infringes upon the copyright. Now, if a party can take out a copyright upon a system of abstract books, and sells one series of those books, the purchaser has a right to use that series. He may not duplicate the system; he may not introduce it into any other city, or duplicate it here; but he undoubtedly will have the right to use that series of books which he has purchased, for the title to the books carries with it the right to use them, and in this case the only pretense of an infringement-for he was found by the verdict of a jury, and a verdict unchallenged in that respect, to be the owner of the books-was that he used them for making abstracts. So, whether we limit the inquiry to the narrow language of the pleadings, or to the facts, as developed in the testimony, we both agree that there was no error, and that the motion for new trial must be overruled

Letters pa.tellt No. 149.254 were granted to C. H. Schultz Mar:ch S1, 1874, for improvement in soda fountl,tins. The claim was for making the connection between the bottom and its lining. and the shell and its lining. in a different maunerfrom that adopted by others; both the bottom and the sheH had been ulled before. ,Held that. where the claim was simply for uniting the lining of thE!' bottom and the lining of the shell so as to form an interior integral vessel. innow&y superior to many prior devices, it was not invention, and was not patentable. ' '

InEquity. Bill to restrain infringement of patent. EliZabeth Matthews et al., complainants, sued the Iron-Clad Manufacturing 'Company to restrain the infringement of a patentowned by them. 4rthurv; Briesen, for complainants. ,F.H. Betts, E. a.Webb, and F. MacArthur, for defendant. COX:E, J. The complainants are owners of letters patent No. 149,254, granted to Carl Schultz March 31, 1874, for an improvement in soda fountains. The invention consists in providing a sheet copper or boilerirons6df!. fountain with a bottom composed of suitable material; the inner surface of which is lined 'with tin which overlaps the edge- of the COver and serves to unite it to the tin lining of the shell. In this manner a strong and durable fountain is produced,and the inner surface of th:e shell is protected against the attacks of the chemicals which may be mixed with the effervescent liquids. 'fhe bottom is provided with a downwardly projecting flange and forms a firm base for the fountain. When desired it can be readily removed. The claim is as follows: , "In a vesselfor holding effervescelltliquids, constrncted all herein shown, the bottom, 0, baving a depending tlan'ge, b, in combinatioilwiththe vessel, A, its lining, a, cap, B, and .lining, c, tile depending which is interposed between the flange,b, and lining. a, in the manner and for the purpose specified." The defenses ure non-infringementand lack of patentable novelty. The specification is ambiguous. Two constructions are suggested and maintained by plausible The complainants insist that the pat.antee describes a soldered jOint between the lining of the bottom and the lining of the cyli.nder. The defendant asserts that this construction eliminates the only novel feature of the structure, namely, access to the interior of the \ressel, and that the claim should be construed to cover a pressure joint only If the latter construction is adopted, it is quite evident that the defendant does not infringe, as the linings in its structure are soldered together. But it is thought that the positive statement ,of; the specification that the rim of the cap is to be soldered to the lining is wholly inconsistent with the defendant's theory, and makes a soldered joint a necessary' element of the claim. The question of invention, therefore, is the only one to be determined. Had the patentee been successful in arranging an operative pressure joint at the point in question the